St. Louis, Iron Mountain & Southern Railway Co. v. Walker

• Decision Date: 01 March 1909
• Citation: 117 S.W. 534,89 Ark. 556
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WALKER
• Court: Arkansas Supreme Court

117 S.W. 534

89 Ark. 556

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. WALKER

Supreme Court of Arkansas

March 1, 1909

Appeal from Hempstead Circuit Court; Jacob M. Carter, Judge reversed.

STATEMENT BY THE COURT.

The appellee, A. V. Walker, as administrator of the estate of J R. Jones, sued appellant, alleging in substance as follows:

That in the year 1902 the defendant company owned and operated and now owns and operates a line of railway on and through the plaintiff's farm. That the Terre Rouge Creek, a stream called Dry Creek, and a slough run through said farm. That in the year 1902 plaintiff had in cultivation on said farm fifty-five [55] acres of crop, forty-one [41] acres north and fourteen [14] acres south of defendant's line of railway. That defendant's line of railway crosses said streams on said farm, and that its embankment there is several feet high. That defendant carelessly and negligently erected its said embankment without sufficient openings in same to allow the water that naturally accumulates in said streams and upon said farm, north of said embankment, to flow off naturally and pass away; that it negligently failed to leave any openings at all where its embankment is built across said Dry Creek and said slough, and thereby wrongfully and negligently obstructed the natural flow of water in said streams; that by means of said embankment across said streams without openings and ditches dug by it, the defendant wrongfully and negligently diverted the water from said streams over and across plaintiff's farm into said Terre Rouge Creek north of said embankment, thereby causing said farm to overflow; that it left a small, but insufficient, opening where said railway crosses said Terre Rouge Creek, but at said point defendant negligently threw large timbers and dirt and suffered logs and drift wood to accumulate in said creek, after changing the bed of said creek at said place, and thereby negligently obstructed the natural flow of water in said Terre Rouge Creek; that on the day of July, 1902, defendant's wrongful and negligent erection and maintenance of its said embankment without sufficient openings and the wrongful and negligent diverting of water from said Dry Creek and slough over and across plaintiff's farm into said Terre Rouge Creek by defendant and defendant's wrongful and negligent filling up of said Terre Rouge Creek obstructed the natural flow of water in said streams and backed same upon said farm and cotton north of said embankment, and held same there for several days, and said forty-one acres of cotton north of said embankment were thereby overflowed and destroyed; that said cotton would not have been overflowed and destroyed had it not been for the said wrongful and negligent acts of defendant, and said wrongful and negligent acts of defendant directly caused the overflow and destruction of said cotton; that said cotton had been cultivated well, and when destroyed was in a good, healthy and flourishing condition and worth one thousand and twenty-five dollars.

The plaintiff, further complaining of the defendant, says that because of the said wrongful and negligent acts of the defendant in and about the erection and maintenance of said embankment, which have been hereinbefore fully described, the natural flow of water in said stream was wrongfully and negligently obstructed, and on the said day of July, 1902, a large body of water was accumulated on said farm, north of said embankment, and held there for several days; that the only outlet for said water was the said small and insufficient opening left by defendant at Terre Rouge Creek; that said water, in passing through said opening, moved with such great force and at such a great velocity that it caused a swift current in the water as it passed over plaintiff's farm and cotton, south of said embankment, which beat down, washed away and destroyed plaintiff's said fourteen [14] acres of cotton, south of said embankment; that, had it not been for the wrongful and negligent acts of defendant the natural flow of water in said stream would not have been obstructed, and said body of water would not have been accumulated on said farm, north of said embankment; that the water that accumulated in said creek and upon said farm, north of said embankment, would not, in passing away, have moved with great force or at a great velocity, and would not have formed a swift current, and would not have beaten down, washed away and destroyed said fourteen acres of cotton, and, had it not been for said wrongful and negligent acts of said defendant, all water that accumulated in said creeks and upon said farm north and south of said embankment would have naturally flowed off and passed away without damage to the plaintiff; that said cotton south of said embankment had been cultivated well, and when destroyed was in good and healthy condition and worth three hundred and fifty dollars; that all of said cotton destroyed north and south of said embankment, by the said wrongful and negligent acts of the defendant, was worth thirteen hundred and seventy-five dollars; and so the wrongful and negligent acts of defendant have damaged the plaintiff said sum of thirteen hundred and seventy-five dollars.

The answer denies specifically each and every allegation of the complaint, and as an additional defense states that the defendant's roadbed and embankment, as it is now and as it was at the time of the alleged overflow, was built more than five years before the alleged overflow. That it had been for many years maintained in its present condition. That if plaintiff had any cause for action it arose more than three years prior to the damage complained of, and that same is barred by the statute of limitations; and further it is alleged that plaintiff planted and cultivated his crop with the knowledge of the condition of the creek and with the knowledge, that it would overflow, and took the chances and assumed the risk of his crop being washed away. And it further alleges that Terre Rouge Creek and the slough and Dry Creek mentioned in plaintiff's complaint overflowed independently of defendant's embankment, and that his crops would have been destroyed had there been no embankment. That defendant's railroad and embankment were built by skilled engineers, and the work was done with due caution and circumspection, and that it has not been guilty of any negligence or damage to plaintiff in any way.

A similar complaint was filed by appellee Holt, alleging that he was a tenant on the Jones farm during the year 1902, and had a crop of cotton consisting of 12 acres situated south of the line of appellant's railway. The complaint then alleged negligence the same as in the Jones case and the total destruction of his crop thereby, to his damage in the sum of three hundred dollars, for which he prayed judgment.

The answer set up the same defenses as in the Jones case. The cases were consolidated and tried with a jury who returned a verdict in favor of the Jones estate for $ 400, and in...